At the start of day two things of note occurred. First, the Court ruled that Zimmerman’s prior calls to police would be admissible as evidence. (Accordingly, later in the day Ramona Rumph returned to Court to testify as to their authenticity.)

Second, the Court dismissed one of the alternate jurors (B72, the gentleman of the one-armed pull-up). Although it was first reported that he was dismissed for the day, in fact any juror that misses any part of testimony must be dismissed from the case entirely. So, we’ve lost our first alternate juror, on the third day into the trial.

The morning saw two of the State’s witnesses testify, Jane Sudyka and Jeanee Manaloo, both of whom were residents of Twin Lakes at the time of the incident and who appeared to testify as to their observations that night. Manaloo’s cross-examination continued until after lunch, when she was followed by brief testimony from Ramona Rumph, the custodian of records for the police emergency call recordings. Finally, the last of the State’s witnesses for the day was Rachel Jeantel, otherwise known as “Dee-Dee”, as Trayvon Martin’s “16-year-old girlfriend,” and as the last person to speak with Martin before his deadly confrontation with George Zimmerman.

Although direct was straightforward with most of the witnesses, Sudyka’s credibility was effectively destroyed by West on cross, and Manaloo suffered a similar fate in cross at the hands of O’Mara. Rumph’s testimony was mostly straightforward and procedural in nature, although O’Mara as usual came with an interesting approach. The day’s last witness, Rachel Jeantel, soundly positioned herself as the “character” of the trial up to this point, and seems likely to retain that crown through reading of the verdict. Jeantel’s cross-examination was incomplete when the Court recessed for the day, and she will return to complete cross by West in the morning.

Jane Sudyka

Sudyka lived in the row of townhouses at just above the upper part of the “T” formed by the dog walk. Her testimony was largely centered on the 16 minute long 911 call she made that night, which can only be described is histrionic. Had I heard that 911 recording in a non-court context I would have assumed it to be part of a scene from a low-quality comedy movie in which the actress had been told to “overact ridiculously, the more exaggerated the better.”

More objectively, however, was testimony by Sudyka that was clearly contrary to facts known and accepted by everyone else involved in the case. On at least three separate occasions Sudyka referred to the “three shots” fired by Zimmerman–“pop, pop, pop”. No one but her has ever suggested that there was more than a single shot fired.

She testified that it was while she was on the 911 call with police that the shot was fired, sticking to that assertion vigorously. In fact, the 911 recording was played in court–yes, every single 16 minutes of it–and no shot was audible.

She also described the relative positions of Zimmerman and Martin at the moment the shot was fired as being such that the bullet could only have struck Martin in the back (that is, she describes him as laying face down on the ground at that moment, with Zimmerman above him). We know, of course, that Martin was shot in the center chest area, right over the heart, and the bullet did not over-penetrate.

Interestingly, Sudyka also stated several times that the rainfall at the time was quite heavy–‘buckets of rain” was the phrase she used, so intense that she needed to close a window to prevent rain from entering her home.

This observation favors the defense, which has suggested that the rain may have washed away the traces of blood that several witnesses have said was not evident at the scene. Indeed, so damaging were these statements to the State that Mr. de la Rionda rose on re-direct for the sole purpose of inducing Sudyka to make corrective statements downplaying the intensity of the rainfall. It also supports the defense’s contention that Zimmerman was exercising reasonable judgment in thinking it suspicious that Martin was out walking in the rain.

Sudyka also was insistent that she had heard two voices, one a loud, aggressive, confrontational, dominating voice and the other a softer, meeker voice. She attributed the confrontational voice to Zimmerman and the meeker voice to the “boy,” Martin. It emerged on cross, however, that she had never previously heard either Zimmerman or Martin’s voice, and was making her assignment based on assumptions of how they might sound, not on personal knowledge.

Jeannee Manaloo

Manaloo’s key testimony on direct was her identification of Zimmerman as the man who was on top during the struggle on the ground, contrary to all other evidence discussed so far in this case. She based this perception on the differing size of the two people, saying that it was the larger person who was on top. Obviously, if correct, this testimony is profoundly inconsistent with the defense’s theory of the case.

O’Mara is handling the cross of Manaloo, and has hit on three key points of attack so far. First was how dark the scene was that night, and how difficult it was for Nanaloo to make out what was happening. He successfully managed her to agree that all she was really able to see at the time was shadows, and even those only from inside her townhome, as she had never stepped outside.

The second line of attack is that her sudden ability to differentiate between the two people has emerged only today in court. In none of her prior statements, including one the evening of the attack, a later statement to investigators, and depositions to both the State and the defense, had she ever mentioned this ability to determine that it was Zimmerman who was on top. Her reason for not mentioning it previously? Nobody had ever asked her.

The third line of attack is to better understand the basis on which she judged Martin’s size. She did not know Martin prior to the shooting, and obviously could not have seen him afterwards except in photos.

We all know, of course, that many of the photos distributed after the event show Martin as a much younger person than the 17-year-old, 6-foot-plus young man he was at the time of his death. O’Mara is midway through the process of pinning down which pictures she may have used for her assessment. Obviously pictures that showed only a portion of Martin’s body, such as just his face, and/or that showed him when much younger would result in a misleading perception on Manaloo’s part, effectively destroying the credibility of her testimony.

O’Mara continued his questioning along these lines, at first before the jury had been brought into the courtroom from the recess. He held up a variety of pictures and asked Manaloo if she had used her knowledge of that particular picture in coming to her determination of the size of the two men. The ones she acknowledged having used for that purpose were set aside and used in questioning before the jury.

Among these were the “hoodie” picture, two “football” pictures, and the Hollister picture. For each of them Manaloo acknowledged that Martin appeared younger in the picture–sometimes a great deal younger–than his 17 years of age at the time of his death.

O’Mara also asked her about earlier statements in which she said that the person who was on top in the fight on the ground was the person she later saw talking with her husband after the shooting. Obviously the person talking to her husband was Zimmerman, so this would support her contention that it was Zimmerman on top during the struggle.

In fact, asked O’Mara, you’re not certain as you sit here today who was where during that altercation, are you? She acknowledged that she was not. West had no more questions.

Bernie de la Rionda launched into re-direct like a bull, quickly triggering a stream of defense objections as he improperly led the witness in an attempt to get her to say what he wanted her to say. Indeed, it finally got to the point where he was brandishing a transcript of her earlier statements at her as if she were an uncooperative defense witness, saying sternly: You’ve already testified that Zimmerman was the bigger of the two people, didn’t you?

Manaloo replied: Compared to the picture, yes.

Isn’t it true, de la Rionda demanded, that on March 26 I took a sworn statement and I asked you if you could identify either person, and you said Zimmerman is definitely on top because of his size? Isn’t also true that in your deposition by West that you said you could identify Zimmerman because you had seen his photo on TV and that based on his size it was Zimmerman on top?

Manaloo equivocated. At that time, she said, I don’t know who they are, I know one is down and one is up.

But Martin never got up after he was shot? asked de la Rionda. No, she answered.

Then it was O’Mara’s turn to hold out a transcript on re-cross. Indeed, he held out de la Rionda’s transcript.

He noted that in response to de la Rionda’s question, OK, so the guy on top to you appeared bigger, Manaloo had responded in the affirmative.

There was, however, some additional context that would be helpful. He read more of the transcript. He had Manaloo read the two or three sentences immediately prior to the just quoted portion.

Manaloo: How would you describe the physical of the guy on top or the guy on the bottom.

O’Mara: OK, and what was your answer?

Manaloo: I know after seeing the TV of what’s happening. Then Mr. de la Rionda said OK, and I said comparing the pictures, I think Zimmerman is definitely on top because of his size.

O’Mara: But again, not becasue you ahv ethat independnt thought obut only becaue you coampared the picutres we just talked about, right?

Manaloo: Yes.

O’Mara: Your only basis for this is not because you though the was on top becasue he was on top, but only because of the comaprison with the picutre of a 12 year old child.

Manaloo: Yes.

Then BLDR on re-direct, practically barking:

BDLR: The person who was on top is the person who got up, right?

Manaloo: Right.

This was clearly a losing exchange for the state. Remember, the defense need only raise a reasonable doubt in one juror in order to avoid conviction. When an eye-witness for the State testifies so equivocally, and sometimes even favorably for the defense, the State can hardly be said to be closing in on a guilty verdict.

Ramona Rumph, Custodian of Records, Sanford Police Department

Rumphs re-appearance was simply to get the prior Zimmerman calls to the police into evidence, and not much of note happened here.

O’Mara on cross did seek to obtain testimony to the effect that it was not at all unusual for a NWP participant to phone the police 5 times in 6 months, particularly in a community suffering a crime in burglaries. This line of questioning was obviously to undercut the State’s theory that Zimmerman was an overzealous NWP “captain”, and a “wannabe cop”, seething with anger over the frequent inability of police to capture the people he reported, who then turned this “hatred” to evil purposes in “profiling,” “following,” and killing Martin. This line of questioning, however, fell outside the bounds of direct examination, and the State appropriately objected on these grounds. At that point O’Mara suggested he would later call Rumph as a defense witness, during which he could question her more expansively on direct.

Rachel Jeantel, aka Dee-Dee, aka “16-year-old girlfriend”

Next up was Rachel Jeantel, of famed Dee-Dee fame, and the once-upon-a-time purported 16-year-old girlfriend of Trayvon Martin (but who turned out to be neither 16-years-old nor his girlfriend).

Nevertheless, her testimony went forward with relatively little difficulty–except in trying to understand her speech–for both Mr. de la Rionda as well as for West, who began cross-examination for the defense, although she gradually became increasingly recalcitrant with West. There was also some amusing language, which became even more amusing when it had to be repeated numerous times in order for the court recorder to capture it accurately.

In summary, Jeantel testified that she was in communication with Martin in the minutes leading up to the confrontation. She testified that he described being under observation by Zimmerman, then being followed by Zimmerman, managing to break contact and then being under observation again, and finally a brief verbal exchange before the phone connection was lost.

Anyone familiar with the backstory of Dee-Dee knows there is more than adequate fuel for real fireworks on cross-examination, but West handled her more or less with kid gloves. It is my sense, however, that he is preparing to bore in more aggressively tomorrow when he continues her cross. This seems particularly likely because at the point the Court recessed for the day Jeantel had begun to resist acknowledging prior sworn statements and West was preparing to spool up the audio recordings of those interviews to use in cross.

Despite the frequent difficulties in understand Jeantel’s responses, however, on one point she was abundantly clear–she was NOT happy to be in court. When she learned just before the Court recessed for the day that West anticipated cross-examining her for another two hours tomorrow, she burst out with an incredulous “WHAT!?!?!?” I’m pretty sure even people standing outside the courtroom heard that exclamation.

So, I won’t spend more time on Jeantel’s testimony here, but will of course cover it in detail when we hit the meat of cross tomorrow.

–Andrew

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available in its just released 2nd Edition, which shows you how to successfully fight the 20-to-life legal battle everyone faces after defending themselves. UPDATE: July 5, 2013 is the LAST DAY to take advantage of the 30% pre-order discount, only $35, plus free shipping. To do so simply visit the Law of Self Defense blog.

At this point, I think the case is going very well for the defense. Nevertheless, to check my perceptions I listened to some television commentary and was baffled by the perception of some commentators that the case is going well for the prosecution. I could not disagree more.

One must keep in mind that the undisputed physical evidence is strongly corroborative of Zimmerman’s account. In fact, this is likely why the first prosecutor chose not to file charges, in my view correctly. Zimmerman had a smashed up nose and bruises and scratches on the back of his head. Travon was found face down with a bullet wound that entered his chest. This evidence is completely consistent with Zimmerman’s account that Travon was pummeling him from above. To prevail, the prosecution must provide an explanation for this physical evidence. So far, none of the prosecution witnesses have come close.

No one has testified that they saw the positions of the two go back and forth and no one testified that Travon was face up after he was shot and then turned over. To the contrary, the defense elicited key concessions that support Zimmerman’s account. The first “ear witness” testified that she did not observe the positions of the two change nor did she observe anyone change the position of Travon’s body. Further, for what it is worth given the conditions, she observed that the person on top was wearing a dark shirt. That would have been Travon. The second eyewitness saw shadowy figures with the larger of the two on top. That is ambiguous at most and quite possibly indicative that Travon was on top as he was significantly taller than Zimmerman.

The “girlfriend’s” testimony, even if completely true, does not establish who was first to use unlawful physical force. Zimmerman may have exercised poor judgment but he does not lose his self-defense claim simply because he was following Travon, contrary to the request of the 911 operator. Following Travon was not unlawful. At most, his following might establish an inference that the pursuer initiated unlawful force. This, however, is just an inference that the defense will have plenty of opportunity to rebut.

If the prosecutor had a strong case, one would expect that at this point in the case, before the defense has begun, that the momentum would be strongly in favor of the prosecution. I agree with the assessment that the first day of trial was a debacle for the prosecution and it would be my assessment that the second day was at worst for Zimmerman a stalemate, with possibly an advantage to him.